Opinion
5130/2011.
Decided May 12, 2011.
Peter Mammis, Esq., New York, NY, for Plaintiff.
De Jesu Maio Associates, by Joseph C. DeJesu, Esq., Huntington, NY, and Herbert A. Smith, Esq., Of Counsel, Huntington, NY, for Defendant.
The following papers numbered were read on this motion:
Notices of Motion, Affirm., Exhibits .......................................... 1-2 Affirmations in Opposition ..................................................... 3 Affirmations in Reply .......................................................... 4 Letter to Court from Joseph C. DeJesu, Esq ..................................... 5 Transcripts of Court Proceedings on March 18 and March 31, 2011 ............... 6-7The Bowne House Owners' Corp. ("Bowne House") is a cooperative located at 42-40 Bowne Street, in Flushing, Queens County, New York. Bowne House is involved in a fight between certain Board members and one former Board member at a time that it is trying to avoid mortgage foreclosure and to pay bills. Little agreement seems possible, and all sides appear to be embroiled in self-destructive fighting.
The plaintiff is a shareholder who alleges that he represents 79% of the shareholders, although the defendant Bowne House and its four Board member defendants — constituting a majority of a seven person Board [actually six, since there is one vacancy] — denies that number. The plaintiff seeks a wide array of relief, including a special meeting of shareholders for the purpose of removing directors, an accounting, and access to financial records of Bowne House.
The Court has read the Bylaws and entertained two oral arguments on this order to show cause. The seven Board members serve one year terms and are all up for election each year at the annual meeting that, under the Bylaws, occurs on the third Tuesday of May. This year that meeting is scheduled for May 17, 2011.
Board members, under the Bylaws, may be removed either with or without cause. A special meeting of shareholders may be called and held if called by 25% of the shareholders. Calculating whether plaintiff has that number is not that easy since there are multiple charges that circulating petitions for the special meeting contain forged signatures or contain signatures of cooperative members who communicate in Chinese, with little familiarity with English, and were manipulated into signing such a petition. In order to call a special meeting, 10-50 days notice must be given. The only business that may be transacted at a special meeting of shareholders, under the Bylaws, is that called in the notice, unless 100% of the shareholders attend the meeting.
In light of the charges of forgery, and the fact that the Court would be inclined to give the maximum notice under the terms of the Bylaws for a special meeting if this Court were to grant the relief, this Court exercises its discretion to deny the branch of the motion, brought by order to show cause, to hold a special election. The order to show cause was first brought in mid-March and a full oral argument was not heard until March 31, 2011.
The annual meeting of May 17, 2011, is approaching in a few days after the release of this decision, order, and opinion. On May 17, the shareholders of Bowne House can decide at that time to fill the seven seats for its Board of Directors. It makes little sense for this Court to intrude in that election and to order a special meeting for the purpose of removing "all the current directors and officers" of Bowne House as requested by plaintiff's counsel, when an annual meeting can be held. Plaintiff's counsel's numerous appeals for an expedited result on his motion appear pointless in light of the imminent date of the annual meeting. See, Breezy Point Cooperative, Inc. v Young, 123 AD2d 354 [2nd Dept. 1986]; In re Unexcelled, Inc. (Mansdorf v Unexcelled, Inc.), 28 AD2d 44 [1st Dept. 1967]; La Vin v La Vin, 281 App Div 1048 [2nd Dept. 1953]; Permagon Press, Inc. v Ross, 61 Misc 2d 479 [Sup Ct Westchester County 1969]; United Democratic Regular Organization of Sixteenth Assembly Dist., Kings County, Inc. v Lewis, 21 Misc 2d 822 [Sup Ct Kings County 1959].
The Court grants the branch of the motion allowing the plaintiffs reasonable access to the financial records of Bowne House, as maintained by Bowne House's managing agent, Metropolitan Pacific Properties, Inc. The access should be on terms and conditions that allow plaintiff meaningful and reasonable access while not disrupting the operations of the managing agent or Bowne House. See, Bus. Corp. Law section 624.
The Court denies the request for an accounting as premature since it is not accompanied and supported by sufficient proof. See, Park Royal Owners, Inc. v Glasgow , 19 AD3d 246 [1st Dept. 2005]; Landsmen v S I Assocs., 159 Misc 2d 230 [Sup Ct New York County 1993].
Bowne House's coop shareholders are mired in infighting and financial difficulties. The two antagonistic sides in this litigation appear unable to use precious financial resources, time, and energy, toward putting Bowne House in good fiscal health. To help avoid foreclosure, the Board ordered, for example, a special assessment. Plaintiff's counsel, Peter Mammis, Esq., however, has decided to put his clients' portion of the special assessment in escrow for an indeterminate time.
Of greater concern to the Court is the invective and vulgar tone of Mr. Mammis in his submissions to the Court, for which he apologized at oral argument, when confronted by the Court. Defendant Solomon Chu had offered, in opposition to the motion, an affidavit that was cogent and fact-filled. Twice, Mr. Chu dismissed Mr. Mammis's position as "ridiculous" and "patently ridiculous."
Mr. Mammis, calls the statements made in Mr. Chu's affidavit "asinine, merit-less [sic]," and uses vulgar language of a sexual nature to further unnecessarily and unprofessionally deride his opponent. Reply affirmation of Peter Mammis, Esq., para. 4. Mr. Mammis adds: "These allegations are further idiocy." Id. Para 14. In response to a letter from Joseph C. DeJesu, Esq., representing the defendants, that challenged whether Mr. Mammis gave him adequate notice of the emergency order to show cause, Mr. Mammis calls the communication to a Court from a fellow member of the Bar as a "disgustingly false letter." Affirmation of Peter Mammis, Esq., of March 18, 2011, para. 2.
For plaintiff's counsel to accuse a litigant of spewing nonsense in a sworn affidavit with such vulgar, gratuitous language can hardly be justified by Mr. Chu having referred to Mr. Mammis's arguments as "ridiculous." Mr. Mammis, as a lawyer, is assumed to operate on a high, and not a juvenile, immature standard of comportment.
The undersigned believes that Mr. Mammis's use of invective and vulgar epithets to be offensive, insulting to the Court, as well as to whom the sharp derisive attacks were meant to hurt. See, In re Moore, 177 F. Supp 2d 197, 199 [SDNY 2001] [lawyer filed papers "containing gratuitous invective"]; Moore v Godinez, 1992 WL 396292 [ND Ill. 1992] [lawyer should "refrain from name calling" in any papers submitted to court]. Mr. Mammis's colorful and needless comments are ultimately self-defeating in terms of both persuasion to the Court and in any effort with opposing counsel and their clients that may lead his adversary to help resolve this emotionally-charged action between neighbors in a cooperative who have decided not to cooperate.
The motion, by order to show cause, is thus granted only to the extent of permitting the plaintiff reasonable access to the financial records of Bowne House, as maintained by Bowne House's managing agent, Metropolitan Pacific Properties, Inc.
The foregoing constitutes the decision, order, and opinion of the Court.